ELR Citation: ELR 21117
No(s). s. 90-30127 et al (9th Cir. Jun 28, 1991)

The court affirms the conviction of six Taiwanese fishermen for violating the Lacey Act by conspiring to import salmon into the United States while knowing that it had been taken in violation of a Taiwanese regulation prohibiting Taiwanese squid fishing vessels from catching salmon. Relying on precedent in the Ninth Circuit, the court first holds that the term "any foreign law" in the Lacey Act encompasses foreign regulations, not just foreign statutes. Also, the Lacey Act's criminal culpability requirements refer to regulations, and Congress intended the term to have a singular meaning throughout the Act. The court further holds that the term "foreign law" encompasses the regulation at issue here, because the regulation clearly relates to wildlife. The court next holds that criminal penalties under the Act can be predicated on foreign regulations imposing only civil sanctions, because precedent in the Ninth Circuit has held that Congress intended this. Further, in imposing criminal punishment for wildlife takings in violation of foreign law, the Act draws no distinction based on the type of sanction imposed by the underlying law. The court holds that it is irrelevant under the Lacey Act that only the captain of the vessel could be penalized under the Taiwanese regulation. The Act's criminal penalty provision does not require that the fishermen violated the regulation, but only that they took part in importing the salmon when they knew, or should have known, that the salmon had been taken in violation of the regulation.

The court next holds that the Act does not unconstitutionally delegate congressional power to foreign governments, as the Ninth Circuit and four other Circuit Courts have already held. Although the Act does depend upon violations of foreign law, the United States is not applying the foreign law per se, but instead is looking to the foreign law to determine if the Act's provisions are triggered. The court holds that, even though the Act does not provide for the translation into English of all foreign laws that may be the predicate for a violation, the Act's reliance on foreign law is not invalid because Congress can obtain translations of any law it wishes to review. The court holds that the Act is not unconstitutionally vague, because the Act's scienter element prevents the Act from criminally punishing those who violate the Act's provisions but are reasonably unaware that they are doing so. Additionally, the culpable intent requirements eliminate the chance that criminal punishment will be imposed on one who violates the Act as a result of having no English translation. The court holds that the Act does not violate the constitutional requirement of fair enforcement, because it sets forth sufficiently explicit standards when defining what constitutes a crime. Finally, the court holds that the money laundering charges against two of the fishermen were valid, because the charges were not based solely on a violation of the Act, but were clearly predicated on a smuggling violation.

Counsel for Appellants
Laurence B. Finegold
Finegold & Zulauf
13th Fl., Tower Bldg., 1809 Seventh Ave., Seattle WA 98101
(206) 682-1114

Counsel for Appellee
John T. Stahr
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

(Before O'Scannlain and Leavy, JJ.):